46 W. Va. 13 | W. Va. | 1899
John Adams conveyed to Reed a tract of land in Braxton County, taking notes for deferred purchase money. J. S. •Hyer became assignee of some of the notes, and the First National Bank of Braddock of some of said notes. The land was later conveyed to the Braxton Lumber & Coal Company, which erected a sawmill upon the land. Smith, Meyer & Schnier sold the lumber company a boiler, engine, and other articles of machinery; and the same made up the said mill, which was in a mill house of permanent structure on the premises. Smith, Meyer & Schnier recorded a paper called “Notice of Reservation of Title,” claiming to reserve title to said boiler, etc., until purchase money therefor should be paid. The s'aid Braxton Lumber & Coal Company failed. One Miles filed a laborer’s lien against said mill, and brought suit in equity against said lumber and coal company to enforce the said lien against the said mill, or, rather, its machinery; and Smith, Meyer & Schnier also brought a chancery suit, claiming a lien upon the machinery in said mill which they had sold said company, and to which they claimed to have reserved title; seeking by their suit to sell said machinery for its purchase money. In these two suits a receiver was appointed, and later there was a decree to sell the machinery for Miles’ debt, subject to the claim of Smith, Meyer & Schnier; and later that decree was set aside, and the said machinery was directed to be sold absolutely, and not subject to their claim, and the proceeds to be held and disbursed under the direction of the court, according to the rights of various creditors of the said lumber and coal company. Ruhl, Koblegard & Co. issued an execution against said lumber and coal company, and under their judgment and execution claimed a lien upon said mill, and, as defendants in the suit of Miles, they filed an answer to enforce their lien, and contesting the validity of the lien against said machinery set up by Smith, Meyer & Schnier; and there was a decree holding that they had no lien. J.
First, if the claim of Smith, Meyer & Schnier to retain title to the machinery sold by them to the Braxton Lumber & Coal Company had been properly presented to the court, it is likely that the exception found in the decree would have been proper since machinery already under mortgage which is annexed to the freehold, which freehold was already under mortgage, becomes part of the freehold, and therefore subject to the realty mortgage, if it cannot
Affirmed.